Police Board of the District of Columbia. The board is bound to act on all licenses duly presented for approval; but it is not required to approve every license so presented, though as regards such license a full compliance with the other provisions of the license-laws is shown. The power conferred upon the board is wholly discretionary, and may be exercised by it as the circumstances of each case in its judgment seem to require. DEPARTMENT OF JUSTICE, SIR: I have received your letter of the 8th ultimo, in which, after referring to the 3d section of the act of July 23, 1866, amendatory of the acts establishing a metropolitan police in the District of Columbia, (14 Stat., 213,) you request my opinion as to the nature and extent of the power or authority thereby conferred upon the board of police in regard to licenses for the sale of intoxicating drinks within the District. This request, you inform me, is made under instructions from the board. It is not the practice of the Attorney-General to give official opinions except at the request of the President or the head of one of the Departments. But as by virtue of the act of March 3, 1873, (17 Stat., 517,) a direct official relation now exists between the Department of Justice and the metropolitan police, it seems to me to be proper that the AttorneyGeneral should advise the latter respecting the performance of their duties when requested so to do. By the above-mentioned section it was made unlawful, from and after the expiration of licenses then already granted, for any person or persons, keeping an ordinary restaurant, saloon, or other place where spirituous liquors are sold, within the District of Columbia, to give, sell, or dispose of any intoxicating drinks without a license approved by the board of police, and it was also provided that thereafter no such license should be considered legal by any of the authorities having jurisdiction within the District until the same should have been approved by the board of police and so certified by the secretary thereof under the office seal. That enactment appears to remain in full force at the present time, and under its provisions it is very clear that no valid license of the above description can be issued without the approval of the board. Whether in any case a license shall be The Virginius. approved by the board or not is left entirely to its judgment. The board is bound to act on all licenses duly presented for approval; but it is not required to act in a particular way. It is not required to approve every license so presented, though as regards such license a full compliance with the other provisions of the license-laws is shown. The power conferred upon the board is wholly discretionary, and may be exercised as the circumstances of each case in its judgment may require. Under the provisions of the 1st and 4th sections of the act of December 31, 1792, chap. 1, no vessel in which a foreigner is directly or indirectly interested can lawfully be registered as a vessel of the United States; nor can it be deemed a vessel of the United States or entitled to the benefits or privileges appertaining to a vessel of that description. So where a vessel has been registered, but the registry was obtained by a false oath as to its ownership, the vessel being at the time owned in whole or in part by foreigners, it cannot be deemed a vessel of the United States. Semble that the Virginius, though registered as an American vessel, was in fact owned by foreigners, and that the registry thereof was fraudulently obtained; and hence, at the time of her capture by the Spanish man-of-war Tornado, she had no right, by virtue of that registry, as against the United States, to carry the American flag. Yet, while upon the high seas, actually bearing an American register and carrying an American flag, she was as much exempt from interference by another power as though she had been lawfully registered; the question whether or not her register was fraudulently obtained, or whether or not she was sailing in violation of any law of the United States, being one over which such power could not then and there rightfully exercise jurisdiction. DEPARTMENT OF JUSTICE, SIR: I have the honor to acknowledge the receipt of your letter of the 11th instant, submitting to me a large number of documents and depositions, and asking for my opinion as to whether or not the Virginius, at the time of her capture The Virginius. by the Spanish man-of-war Tornado, was entitled to carry the flag of the United States, and whether or not she was carrying it improperly and without right at that time. This question arises under the protocol of the 29th ultimo between the Spanish minister and the Secretary of State, in which, among other things, it is agreed that on the 25th instant Spain shall salute the flag of the United States. But it is further provided that "if Spain should prove to the satisfaction of the Government of the United States that the Virginius was not entitled to carry the flag of the United States, and was carrying it, at the time of her capture, without right and improperly, the salute will be spontaneously dispensed with, as in such case not being necessarily requirable; but the United States will expect, in such case a disclaimer of the intent of indignity to its flag in the act which was committed." Section 1 of the act of December 31, 1792, provides that ships or vessels registered pursuant to such act, "and no other, (except such as shall be duly qualified, according to law, for carrying on the coasting trade and fisheries, or one them,) shall be denominated and deemed ships or vessels of the United States, entitled to the benefits and privileges appertaining to such ships." Section 4 of the same act provides for an oath, by which, among other things, to obtain the registry of a vessel, the owner is required to swear "that there is no subject or citizen of any foreign prince or state directly or indirectly, by way of trust, confidence, or otherwise, interested in such ship or vessel, or in the profits or issues thereof." Obviously, therefore, no vessel in which a foreigner is directly or indirectly interested is entitled to a United States registry, and if one is obtained by a false oath as to that point, and the fact is that the vessel is owned or partly owned by foreigners, she cannot be deemed a vessel of the United States, or entitled to the benefits or privileges appertaining to such vessels. The Virginius was registered in New York on the 26th of September, 1870, in the name of Patterson, who made oath as required by law; but the depositions submitted abundantly show that, in fact, Patterson was not the owner at that time, but that the vessel was the property of certain Cuban citi The Virginius. zens in New York who furnished the necessary funds for her purchase. I. E. Shepherd, who commanded said vessel when she left New York, with a certificate of her register in the name of Patterson, testifies positively that he entered into an agreement to command said vessel at an interview between Quesada, Mora, Patterson, and others, at which it was distinctly understood that the Virginius belonged to Quesada, Mora, and other Cubans, and that said Mora exhibited to him receipts for the purchase-money, and for the repairs and supplies upon said steamer, and explained to him how said funds were raised among the Cubans in New York. Adolpho De Varona, who was the secretary of the Cuban Mission in New York at the time the Virginius was purchased, and afterwards sailed in her as Quesada's chief of staff, testifies that he was acquainted with all of the details of the transaction, and knows that the Virginius was purchased with the funds of the Cubans and with the understanding and arrangement that Patterson should appear as the nominal owner because foreigners could not obtain a United States register for the vessel. Francis Bowen, Charles Smith, Edward Greenwood, John McCann, Matthew Murphy, Ambrose Rawlings, Thomas Gallagher, John Furlong, Thomas Anderson, and George W. Miller, who were employed upon the Virginius in various capacities after she was registered in the name of Patterson, testify clearly to the effect that they were informed and understood while they were upon the vessel that she belonged to Quesada and the Cubans represented by him, and that he navigated, controlled, and treated such vessel in all respects as though it was his property. Nothing appears to weaken the force of this testimony, though the witnesses were generally subjected to cross-examination; but, on the contrary, all the circumstances of the case tend to its corroboration. With the oath of registry, the statute requires a bond to be given, signed by the owner, captain, and one or more sureties, but there were no sureties upon the bond given by Patterson and Shepherd. Pains have been taken to ascertain if there was any insurance upon the vessel, but nothing of the kind has been found; and Quesada, Varona, and the other Cubans who took passage upon the Virginius, instead of The Virginius. going on board at the wharf in the usual way, went aboard off a tug after the vessel had left the harbor of New York. I cannot do otherwise than to hold, upon this evidence, that Patterson's oath was false, and that the register obtained in his name was a fraud upon the navigation laws of the United States. Assuming the question to be, what appears to conform to the intent of the protocol, whether or not the Virginius, at the time of her capture, had a right, as against the United States, to carry the American flag, I am of the opinion that she had no such right, because she had not been registered according to law; but I am also of the opinion that she was as much exempt from interference on the high seas by another power, on that ground, as though she had been lawfully registered. Spain no doubt has a right to capture a vessel with an American register and carrying an American flag, found in her own waters, assisting or endeavoring to assist the insurrection in Cuba, but she has no right to capture such a vessel on the high seas upon an apprehension that, in viola tion of the neutrality or navigation laws of the United States, she was on her way to assist said rebellion. Spain may defend her territory and people from the hostile attack of what is, or appears to be, an American vessel, but she has no jurisdiction whatever over the question as to whether or not such vessel is on the high seas in violation of any law of the United States. Spain cannot rightfully raise that question as to the Virginius, but the United States may, and, as I understand the protocol, they have agreed to do it; and governed by that agreement, and without admitting that Spain would otherwise have any interest in the question, I decide that the Virginius at the time of her capture was without right and improperly carrying the American flag. Very respectfully, Hon. HAMILTON FISH, GEO. H. WILLIAMS. Secretary of State. |